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How to File a Petition to Stop a Foreclosure
We spoke to you recently about your foreclosure problem. At that time, we gave
you advice about your case and how best to proceed. As we discussed with you, we
are enclosing a sample/form petition that you can use to ask the Superior Court to stop
or delay the foreclosure sale of your home. Our advice is based on the facts as you
described them to us. This letter provides you with instructions on how to file the
petition and make your arguments to the court.
To succeed with this petition, it is crucial that you have a solution to present to
the court. While the law gives you the right to simply ask for more time, the court is
very unlikely to grant your request unless you can say that a delay will give you time to
pay off the debt without putting the mortgage holder further behind. This generally
means that you need the time to refinance the mortgage with another lender, you have
other money coming in to pay off the debt, or you have a buyer and need time to
complete the sale.
Filling out the form The petition we sent you is partly completed, with space left for
you to fill in the facts of your situation.
At the top, you will need to fill in the names of the parties – you are the plaintiff
and the mortgage holder (bank) is the defendant.
You will need to fill in dates and amounts of money.
Paragraphs 6 and 7 are blank, for you to tell the story of what happened – use
your own words.
Describe how you first got into trouble with your mortgage;
Describe when this problem started;
Describe what you have done to try to solve the problem;
Describe how the debt can be paid or the arrears caught up:
You have a buyer for the home, but need more time; or
You have a way of refinancing the home, but need more time; or
You have some other way of paying off the mortgage soon;
Use as much space as you need – feel free to make these 2 paragraphs
longer, or even add additional paragraphs if necessary to tell what happened, what
you tried to do to prevent foreclosure, and what your plan is to solve the problem.
Make copies – the original for the court, 1 for the mortgage holder, 1 for their
attorney, and 1 for yourself.
Filing the Petition
The petition should be filed as early as possible.
Give the petition to the clerk of court as soon as you arrive. Because you are
asking for immediate relief, you want to appear before a judge or get an order
as soon as possible.
Ask the clerk what you should do next. You may be given a specific time to
come back, or you may have to wait. Follow the clerk’s instructions and be
prepared to wait as long as it takes.
This petition asks the court to delay the foreclosure, and it asks the court to
issue an immediate order, without hearing from the other side (that is what ex
If the court grants the ex parte part of your request, the foreclosure may be
briefly delayed, but only until a hearing can be scheduled where both sides can
be heard. That next hearing is likely to quite soon – that is when you can
explain to the court why the foreclosure should be delayed for a longer period.
Talking to the other side
You must notify the other side that you are filing the petition. You also should
try to get them to agree. Even though you are presumably filing this petition
because you have already tried to get the bank’s agreement, you need to ask
them or their attorney anyway.
When you know the day and time when you plan to file your petition, tell the
other side. If the clerk gives you a time for a hearing on your ex parte request,
you should let the other side know when the hearing will be. Even though this is
not formal notice, the court will look at your petition more favorably if you gave
the other side the chance to be present, even if they cannot be there or choose
not to be.
Once you have actually filed the petition, you still may be able to discuss a
settlement with the bank or its attorney. You should definitely take this
opportunity if it is offered. If an agreement will get you the time you need, that
is better than taking your chances in court.
At the hearing
Remember that you are asking the court for a delay only. You are not
challenging the foreclosure or the bank’s right to foreclose.
The best argument for getting a delay is to convince the court that more time
will allow you to pay off the bank (or at least bring payments up to date), while
not harming the bank financially.
Point out that you have a realistic means of solving the problem – refinancing,
sale, another source of payment – and that the mortgage holder will still get its
Emphasize that the mortgage holder will not be harmed by the delay.
Describe your efforts to come up with the necessary money; make sure the court
knows that you have not been ignoring the problem.
Point out that once the home is sold, your loss will be irreparable – you will not
be able to get it back or be compensated in money for losing your home.
If you can, ask for a specific amount of time – depending on the circumstances,
30–60 days is not unusual.
The ex parte part of your request will only be temporary. If the order is granted,
the court will schedule a swift hearing, often within 7-10 days; this gives the
court time to notify the other side and the other side time to prepare.
We have supplied you with a proposed order, which you can give to the judge.
If the judge agrees with you, it makes it easier if you supply an order that says
what you want it to say. Or, the court may choose to issue its own order, in its
Try to have an outline of what you plan to say – it’s better not to read from a
script, but having some notes will help you to make sure that you do not leave
out the things you need to say.
The petition has LARC’s name at the bottom. If the judge or anyone else asks
you about it, feel free to tell them that LARC gave it to you, as part of the legal advice
we have already provided.
Call LARC If you have any questions about this petition or the procedures
involved with filing and service, you can call us back. We would like to know the
outcome of your case, and would appreciate hearing from you. The toll-free number to
LARC is 1-800-639-5290; you can get into the housing line to speak to one of our staff.
Legal Advice and Referral Center